December 31, 2008

The Wisconsin Court of Appeals, District IV, issued a ruling on December 30, 2008 holding that a nude person who is secretly filmed by their sexual partner is still entitled to an expectation of privacy. The case of State v. Jahnke, 2007AP-2130-CR (Wis. 4th Dist. Ct. App. 2008), involves a situation where a man secretly videotaped his girlfriend of three years while they were having sex. The defense argued that the girlfriend had "no reasonable expectation of privacy because she knowingly and consensually exposed her nude body" to the defendant while he was secretly videotaping her. Thus, the defense contended that the "only pertinent question for purposes of [satisfying] the privacy element is whether his girlfriend had a reasonable expectation that [the defendant] would view her nude at the time of the recording." (Emphasis in original.) In contrast, the State argued that the court should instead question "whether the nude person had a reasonable expectation, under the circumstances, that he or she would not be recorded in the nude." The court agreed with the State and therefore declined to overturn the defendant's conviction.

The Jahnke case has some persuasive value when considering Florida's law prohibiting video voyeurism, found in Florida Statutes ss. 810.145. This is particularly true because the Florida statute uses similar language to prohibit the secret taping of a person "who is dressing, undressing, or privately exposing the body, at a place and time when that person has a reasonable expectation of privacy." Interestingly, the Florida statute seems to require the exposure of the body to actually be "private" in addition to the victim having a "reasonable expectation of privacy," which is not a part of the Wisconsin statute. Thus, an argument could be made that any exposure of the body that takes place during sexual intercourse is not "private" since the exposure is necessarily in front of at least one other person. On the other hand, the Wisconsin case of Jahnke, broadly defines the privacy expectation to include a person's expectation of whether they would be videotaped in the nude, not just seen nude. Thus, under the Wisconsin court's interpretation, the presence of other individuals does not affect the expectation of privacy. Rather, it is the other circumstances surrounding the nudity that give rise to the "reasonable expectation." The Wisconsin court appears to confirm this line of reasoning when it states:

"For example, a woman might agree to have sex with a man who has told her that he has in the past secretly recorded sexual partners. Even if that woman does not consent to being recorded in the nude, she may have relinquished her reasonable expectation that she will not be recorded. Another example is a person who attends, in the nude, a popular public beach used by people who wear normal swimwear and beach clothing, but does not consent to being recorded. Even if the nude person does not consent to being recorded, he or she may have no reasonable expectation that there will be no recording. Although the absence of consent and an expectation that one will not be recorded nude often go hand in hand, the two are not inseparable companions." Jahnke, p. 5.

It does not appear that any Florida courts have had occasion to interpret what the "reasonable expectation of privacy" language means in the context of a situation like the one in Jahnke. There are a varying number of viewpoints that a court might adopt in defining this statutory phrase. For example, one line of reasoning would be to define the phrase in conformity with the fourth amendment to the U.S. Constitution. Under this reading, the question would be whether the alleged victim was recorded from a location where the so-called "voyeur" had a right to be. If the nudity could be recorded or viewed from such a location, then the conduct would be legal under this interpretation. Another interpretation would be to adopt the defense's reasoning in Jahnke. And, of course, a third line of thinking would be to adopt the Wisconsin approach. It is noteworthy that the Florida Statute, unlike the Wisconsin law, contains a definition of the phrase “a place and time when a person has a reasonable expectation of privacy” to mean:

“A place and time when a reasonable person would believe that he or she could fully disrobe in privacy, without being concerned that the person's undressing was being viewed, recorded, or broadcasted by another, including, but not limited to, the interior of a bathroom, changing room, fitting room, dressing room, or tanning booth.” F.S. ss. 810.145(1)(c).

This statutory definition would therefore appear to support the argument made above that only “private” disrobing, not in the presence of another, is subject to protection from video voyeurism.

Florida's video voyeurism statute has undergone a number of recent revisions intended to make the law effective in the "Information Age" and to also enhance the penalties associated with the offense. Our office will cover these changes to the video voyeurism law in future updates.